July 29, 2009

11th Circuit Nominee Questioned on Sentencing

Senate Republicans said today that they plan to support President Barack Obama's nominee for a vacancy on the U.S. Court of Appeals for the 11th Circuit, despite a controversial ruling she issued last year finding that a mandatory minimum sentence was unconstitutional.

The ruling involved Kelly Farley, who on a visit to Georgia planned to meet and have sex with a woman and her 10-year-old daughter. In fact, the woman was part of a federal sting operation, and agents arrested Farley when he arrived at the Atlanta airport. He was found guilty in a bench trial of using the Internet to entice a child to have sex and of crossing state lines with the intent to have sex with a child.

Before sentencing Farley, Judge Beverly Martin issued a 26-page ruling (pdf) declaring that the mandatory minimum sentence of 30 years would violate the Eight Amendment’s protection against “cruel and unusual punishments.” She later sentenced him to 19 years, and the Justice Department has appealed her ruling to the 11th Circuit.

The ruling was the subject of most of the questions that senators asked today at a confirmation hearing for Martin. A former federal prosecutor, she has been on the U.S. District Court for the Northern District of Georgia since 2000 and is up for elevation to the Atlanta-based appellate court.

Sen. Orrin Hatch (R-Utah) said he was concerned about language in her ruling that “no harm was suffered” because Farley had not had sex with a child. Federal law, Hatch said, does not consider it relevant whether sex actually occurred. “With respect, it sounds like you were saying, ‘No harm, no foul.’ But that is certainly not what the Congress thought,” he said.

Martin, noting that Farley was arrested before he left the plane, said she compared the 30-year minimum to other minimum sentences, such as 15 years for producing pornography and 10 years for crossing state lines with intent to murder. She said she relied on Supreme Court precedent regarding application of the Eighth Amendment.

“My effort was to write an opinion applying the test, and when I got to the proportionality analysis, I couldn’t find the words to say that it was not disproportionate,” Martin said.

Hatch said he planned to vote for Martin anyway, as did Sen. Jeff Sessions (R-Ala.), the top Republican on the Judiciary Committee. Sessions warned Martin against the “temptation” among judges to ignore federal sentencing minimums and guidelines.

Georgia’s two Republican senators, Saxby Chambliss and Johnny Isakson, spoke on Martin's behalf today and said they plan to vote for her. A vote in the Judiciary Committee is likely in the fall, to be followed by a vote in the full Senate.